NIMITH C. Vs. STATE OF KERALA

JUDGEMENT

(1.) This is an application filed by the petitioner challenging the order passed by the Additional Sessions Judge-III, Kasargod in Crl. M.P. No. 2725 of 2014 in SC No. 97 of 2014 pending before that Court under Section 482 of the Code of Criminal Procedure (for short, "the Code"). It is alleged in the petition that the petitioner has been arrayed as 5th accused in Crime No. 594 of 2013 of the Chanthera Police Station along with others alleging offences punishable under Sections 118, 120B, 342, 449, 394, 302 of the Indian Penal Code (for short, "the IPC"). After investigation final report has been filed and now the case is pending as S.C. No. 97 of 2014 before the Additional Sessions Judge-III, Kasargod. During trial of the case the Investigating Officer was examined as PW 114. During cross-examination by the counsel for the petitioner, a specific question was put to the witness with regard to usage of his official mobile phone. The witness stated that he was using the same. The defence case put forwarded by the petitioner is that he was not arrested from the place alleged by the prosecution and also no recovery as alleged by the prosecution was in fact effected. The petitioner's case is that he was arrested from his house at Kannur and no recovery was effected as claimed by the prosecution. He filed Crl. M.P. No. 2725 of 2014 for summoning the District Police Chief, Kasargode to produce the call records and cell ID of the official phone number used by the Investigating Officer to trace the tower location of the Investigating Officer. The Court below after erroneous consideration dismissed the application by the impugned order. That order is being challenged by the petitioner by filing this petition.

(2.) Heard the counsel for the petitioner and the learned State Public Prosecutor appearing for the respondent.

(3.) The learned counsel for the petitioner submitted that the case of the prosecution was that he was arrested from a particular place and after arrest he was questioned and on the basis of the confession made by him certain recoveries were effected which they want to rely on under Section 27 of the Evidence Act. The case of the petitioner was that he was really taken into custody by the Police from Kannur which is away from the alleged place of occurrence. But the prosecution case was that he was taken from a place at Malappuram and thereafter the recovery was effected. When PW 114 was examined, he had admitted that he was having an official mobile phone but he had stated that he does not remember as to whether he was having a personal mobile phone at that time. He has also stated that he did not remember as to whether there were any calls received in his mobile phone on that particular date. So in order to prove that fact, the petitioner had filed the present Crl. M.P. for the purpose of getting the call details and also the tower location so as to disprove the case of the prosecution. As a defence he is entitled to call for such evidence and that is only evidence available to prove his innocence. Further the reason stated by the Court below regarding the exemptions are not available to the Police and that will not affect the right of the Court to get into those informations for the purpose of ascertaining the truth of the case.